Skinner v. Tuscan Incorporated

• Court: District Court, D. Arizona
• Decided: October 7, 2020
• Docket: 4:18-cv-00319
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Cora Skinner, et al., No. CV-18-00319-TUC-RCC

10 Plaintiff, ORDER

11 v.

12 Tuscan, Inc., et al.,

13 Defendant. 14 15 Pending before the Court are Defendant’s Motions to Strike Report and Testimony 16 of Martin Buncher (Doc. 48) and Stephen Chamberlin (Doc. 49), and Plaintiffs’ Motion 17 to Strike Report and Testimony of Michael Einhorn (Doc. 43). This matter has been fully 18 briefed. (Docs. 43–45, 48–49, 53–54, 56–57.) The Court finds oral argument will not aid 19 in the resolution of the issues raised. See LRCiv 7.2(f); Fed. R. Civ. P. 78(a); Mahon v. 20 Credit Bureau, 171 F.3d 1197, 1200 (9th Cir. 1999). As set forth below, the Court denies 21 all motions. 22 Plaintiffs Cora Skinner, Jaime Edmondson Longoria, Jessica Rockwell, Lina 23 Posada, Lucy Pinder, Nikki Leigh, and Ursula Mayes (“Plaintiffs”) raise state law claims 24 of right of publicity/misappropriation of likeness and false light/invasion of privacy. They 25 also raise claims under the Lanham Act for false advertising and false association. 26 Plaintiffs allege that Defendant Tuscan, Inc. d/b/a Ten’s Nightclub (“Defendant” or 27 “Ten’s”) unlawfully used Plaintiffs’ photographs to advertise its strip club by posting 28 Plaintiffs’ images on Defendant’s Instagram, Facebook, and Twitter without permission. 1 Plaintiffs claim that the use of their photographs created the false impression that they 2 were somehow associated with, approved of, or employed at Ten’s. Furthermore, 3 Plaintiffs assert that because Defendant did not pay them for the photo shoots, it deprived 4 Plaintiffs of the income they would have received but for Defendant’s unlawful use of the 5 photographs. Plaintiffs seek actual damages, disgorgement of profits, treble damages, 6 punitive damages, compensatory damages, reasonable attorneys’ fees, costs, and interest. 7 The parties have retained their respective experts in this matter. Plaintiffs retained 8 Martin Buncher to conduct a survey to measure the likelihood of consumer confusion 9 resulting from Defendant’s use of Plaintiffs’ photographs. Plaintiffs also retained Stephen 10 Chamberlin to establish actual damages. Defendant retained Michael Einhorn to establish 11 its valuation of damages. All experts have been challenged by the opposing party. 12 I. Standard of Review – Expert Testimony 13 As a threshold matter, “evidence is admissible so long as (1) it is relevant, and (2) 14 it is not otherwise inadmissible under, inter alia, the Federal Rules of Evidence.” United 15 States v. Evans, 728 F.3d 953, 960 (9th Cir. 2013) (citing Fed. R. Evid. 402). Federal 16 Rule of Evidence 702 outlines when proposed expert testimony is admissible. See 17 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93, n.10 (1993). Rule 702 18 states: 19 A witness who is qualified as an expert by knowledge, skill, 20 experience, training, or education may testify in the form of an opinion or otherwise if: 21 22 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the 23 evidence or to determine a fact in issue; 24 (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and 25 methods; and (d) the expert has reliably applied the principles and methods 26 to the facts of the case. 27 28 1 Fed. R. Evid. 702. The party seeking to present expert testimony has the burden of 2 showing by a preponderance of the evidence that the expert is qualified and that his or her 3 evidence is admissible. United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). 4 “The qualification standard is meant to be broad and seek a ‘minimal foundation’ 5 justifying the expert’s role as an expert.” Allen v. Am. Capital Ltd., 287 F. Supp. 3d 763, 6 776 (D. Ariz. 2017) (quoting Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 7 1015–16 (9th Cir. 2004)). Years of relevant experience can establish the necessary 8 “minimal foundation.” See Hangarter, 373 F.3d at 1015–16 (finding that twenty-five 9 years of working as an independent consultant and an expert witness in the insurance 10 industry satisfied the “minimal foundation” necessary to provide expert testimony). 11 “Disputes as to the strength of [an expert’s] credentials . . . go to the weight, not the 12 admissibility, of his testimony.” Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th 13 Cir. 1998) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)). 14 Additionally, to be admissible, expert testimony must be both relevant and 15 reliable. Daubert, 509 U.S. at 589. A court has broad discretion in deciding whether to 16 permit a proposed expert’s testimony, but it “cannot abdicate its role as gatekeeper” by 17 leaving the determination of relevance or reliability to the fact finder. Estate of Barabin v. 18 AstenJohnson, Inc., 740 F.3d 457, 464 (9th Cir. 2014). Nonetheless, “Rule 702 was not 19 meant to supplant ‘the traditional and appropriate means of attacking shaky but 20 admissible evidence,’ including ‘[v]igorous cross-examination, presentation of contrary 21 evidence, and careful instruction on the burden of proof.’” Gray v. LG&M Holdings LLC, 22 et al., No. CV-18-02543-PHX-SRB, Doc. 121 at 16 (D. Ariz. Sept. 3, 2020) (quoting 23 Daubert, 509 U.S. at 596). 24 a. Relevance 25 In general, evidence is relevant if it “has ‘any tendency to make the existence of 26 any fact that is of consequence to the determination of the action more probable or less 27 probable than it would be without the evidence.’” Daubert, 509 U.S. at 587 (quoting Fed. 28 R. Evid. 401). An expert’s testimony must also “logically advance[] a material aspect of 1 the proposing party’s case” to qualify as relevant. Daubert v. Merrell Dow Pharms. 2 (Daubert II), 43 F.3d 1311, 1315 (9th Cir. 1995). 3 b. Reliability 4 A court’s inquiry into whether expert testimony is reliable is “a flexible one.” 5 Estate of Barabin, 740 F.3d at 463. The court may determine reliability of expert 6 testimony by assessing several factors, including whether the expert’s technique or theory 7 (1) can be tested; (2) has been peer reviewed or published; (3) has a known or potential 8 basis for error; and (4) is generally accepted in the pertinent scientific community. 9 Hankey, 203 F.3d at 1168. Moreover, “survey evidence should be admitted ‘as long as [it 10 is] conducted according to accepted principles and [is] relevant.’” Fortune Dynamic, Inc. 11 v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010). 12 Additionally, a court may assess the reliability of an expert by considering (1) the 13 expert’s specialized knowledge, education, skill, or training in an area relevant to the area 14 of testimony; (2) whether the expert’s techniques are pertinent to the conclusions 15 presented; and (3) whether the probative value of the expert’s opinion is substantially 16 outweighed by unfair prejudice. Hankey, 203 F.3d at 1168. The objective “is to make 17 certain that an expert, whether basing testimony upon professional studies or personal 18 experience, employs in the courtroom the same level of intellectual rigor that 19 characterizes the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 20 152. 21 Here, the proposed experts are assessed in turn. 22 II. Martin Buncher 23 Plaintiffs wish to present a survey and report produced by Mr. Buncher to aid “a 24 jury in assessing whether Defendant’s advertisements were likely to cause consumer 25 confusion” to support their false association claim. (Doc. 53 at 3.) Plaintiffs also believe 26 Mr. Buncher’s analysis is relevant to whether the Plaintiffs are recognizable, therefore 27 Mr. Buncher’s testimony supports their right of publicity, false light, and false 28 association claims. 1 a. Mr. Buncher’s Knowledge, Education, Skill, and Training 2 Mr. Buncher’s background reflects fifty-five years of experience conducting 3 research studies in marketing communications. He is active in several groups that 4 promote marketing research. He has contributed to a textbook about marketing 5 communications, and even taught college courses on the subject. Moreover, Mr. Buncher 6 has participated in over twenty studies in similar strip club cases, investigating the role of 7 women in each defendant’s advertising. Defendant does not challenge Mr. Buncher’s 8 extensive qualifications. The Court finds Mr. Buncher’s experience evinces reliability. 9 b. Mr. Buncher’s Survey 10 In Mr. Buncher’s survey, Defendant’s advertisements with Plaintiffs’ photos were 11 presented to two groups, with approximately six hundred participants in total. Selected 12 participants, half of whom were men, resided within a certain radius of Ten’s and had 13 attended strip clubs in the previous two years. Participants were asked a series of 14 questions based on the advertising images. 15 Based on the results of the survey, Mr. Buncher concluded that (1) 65% of 16 participants thought Plaintiffs were affiliated with Ten’s; (2) 82% believed Plaintiffs 17 sponsored, endorsed, or promoted Ten’s; (3) 84% presumed Plaintiffs approved of their 18 images being used in Ten’s advertising; (4) 75% believed Plaintiffs were part of the 19 stripper lifestyle; (5) 66% thought Plaintiffs participated in Ten’s activities; and (6) 85% 20 believed Plaintiffs had been paid for the use of their image. Moreover, Mr. Buncher 21 found that around 15% of participants believed they recognized Plaintiffs. 22 c. Defendant’s Objections to Survey and Report 23 Defendant has the following objections to Mr. Buncher’s survey and his 24 conclusions about consumer confusion. Defendant asserts that Mr. Buncher’s survey is 25 unreliable and irrelevant because: 26 /// 27 /// 28 /// 1 1) It did not contain a control group and the control question was insufficient; 2 2) The survey questions were “improper, confusing, misleading, and include 3 undefined and ambiguous terms”; 3) There was no option to answer “no opinion” or “don’t know,” or 4 instruction to the participant not to guess; 5 4) Participants were not representative of Ten’s clientele and the survey failed to consider prior exposure to Ten’s nightclub and the survey made 6 no attempt to account for potential bias; 7 5) The survey did not “meet generally acceptable survey principles or methods”; 8 6) The cumulative survey errors render it unreliable; and; 9 7) The survey was not relevant to any issue in this case. 10 (Doc. 48.) In addition, Defendant attacks Mr. Buncher’s ability to provide his expert 11 opinion in this case because his testimony was stricken in other similar cases based on the 12 arguments listed above. 13 i. Control Group and Control Question 14 Defendant believes Mr. Buncher’s survey and report are unreliable because Mr. 15 Buncher failed to utilize a control group. Mr. Buncher explained that the survey was a 16 communications study designed to evaluate what messages Defendant’s advertisements 17 communicated to the audience. Unlike a causal study, he claims, communications studies 18 do not require a control group. And so, instead of a control group, Mr. Buncher utilized a 19 control question that excluded Plaintiffs’ images from Defendant’s ads and asked 20 participants how the exclusion affected participants’ perception of the advertisement. 21 This, he claims, is “consistent with the logic of the Diamond research standard.” (Doc. 22 48-2 at 11 (citing Sheri S. Diamond, Reference Guide on Survey Research, Reference 23 Manual on Scientific Evidence, 359 (Federal Judicial Center, 3d ed. 2011).) Defendant 24 also believes the control question was inadequate because it notified the respondent of the 25 purpose of the survey by drawing attention to the absence of the Plaintiffs’ photo. 26 When considering the admissibility of an expert opinion, objections based on an 27 expert’s “methodology [and] survey design . . . go to the weight of the survey rather than 28 its admissibility.” Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir. 1 2001). A party may debate a survey’s alleged inadequacies through vigorous cross- 2 examination. See Marsteller v. MD Helicopter Inc., No. CV-14-01788-PHX-DLR, 2018 3 WL 3023284, at *1–2 (D. Ariz. May 21, 2018). 4 Defendant’s argument constitutes a challenge to Mr. Buncher’s methods. As such, 5 the argument goes to the weight, not the admissibility. Plaintiffs have shown by a 6 preponderance of the evidence that Mr. Buncher’s method follows accepted principles. 7 Defendant may challenge the method through cross-examination. 8 ii. Confusing Questions and Limited Answers 9 Next, Defendant argues the survey was fundamentally flawed because it did not 10 give participants the ability to indicate they had no response, no opinion, or did not know 11 the answer. Mr. Buncher states that according to two published perspectives—one in the 12 realm of psychology and the other communications–—permitting these non-responses 13 would actually increase the amount of guessing. (Doc. 48-2 at 16 (first citing Dean 14 Peabody, Two components in bipolar scales: Direction and extremeness, Psychological 15 Review 69(2), 1969; then citing John R. Rossiter & Larry Percy, Advertising 16 Communications and Promotion Management (McGraw-Hill, 2d ed. 1997).) He explains 17 that “questions which exclude the ‘don’t know’ option produce a greater volume of 18 accurate data than those that do.” (Doc. 48-2 at 16.) The Court finds Plaintiff has shown 19 this method is reliable by a preponderance of the evidence. Whether the exclusion 20 actually increased or decreased the accuracy of responses can be debated through cross- 21 examination. 22 Defendant also believes the survey was flawed because participants were not 23 given the opportunity to specify Plaintiffs’ true names and could not express uncertainty. 24 Because of this, Defendant claims, no Plaintiff has been truly identified and the survey 25 results cannot measure identifiability. The Court disagrees, it is possible to recognize a 26 person without recalling their name. In fact, as the undersigned is learning all too well, 27 with age this occurs more and more frequently. Regardless of the Court’s interpretation, 28 however, Mr. Buncher’s method of identifying Plaintiffs is a methodological objection 1 that goes to weight, not admissibility. 2 In addition, Defendant believes certain terms in the survey were too ambiguous to 3 be reliable. For instance, the survey asked whether the participants felt the Plaintiff 4 enjoyed the lifestyle portrayed by the strip club or participated in Ten’s events. Defendant 5 would also like further explanation of the words enjoy and probably. These words are not 6 specific and can lead to biased responses, Defendant claims. Moreover, Defendant 7 objects to Mr. Buncher’s use of the word ads in reference to Plaintiffs’ images with Ten’s 8 promotional material and would prefer the words pictures or social media posts. 9 “‘[T]echnical inadequacies’ in a survey, ‘including the format of the questions or the 10 manner in which it was taken, bear on the weight of the evidence, not its admissibility.’” 11 Fortune Dynamic, Inc., 618 F.3d at 1036. Defendant argues semantics; these challenges 12 to the technical inadequacies of the survey go to the weight of the evidence and are better 13 assessed by a jury. 14 iii. Representative Sample 15 Defendant claims that the survey is flawed because Mr. Buncher did not explain 16 how participants were contacted, selected, or paid. Also, the survey was not a 17 representative sample of Ten’s clientele because Mr. Buncher used far too many women. 18 The survey utilized 50% women, but Ten’s has predominantly male customers. This 19 could lead to biased and inaccurate responses. 20 Mr. Buncher explained that the survey targeted a random selection of recent strip 21 club patrons residing in the vicinity of Ten’s. Participant selection was managed by Luth 22 Research Incorporated, which “uses a proprietary, patented system of referrals and case 23 rewards” and “reaches millions of people worldwide.” (Doc. 48-2 at 13.) Mr. Buncher 24 also stated the reason the survey used 50% women was to isolate gender to determine 25 whether the message portrayed in the ads differed by sex. As Defendant did not provide a 26 clientele list to Plaintiffs, it is difficult to say how a more accurate representative sample 27 of Ten’s clientele could be obtained. This is a methodological argument, and Mr. 28 Buncher has adequately explained the means of obtaining participants and reasoning 1 behind the final selection. 2 In addition, Defendant claims Mr. Buncher did not account for participants’ prior 3 attendance at Ten’s and knowledge of Ten’s advertising. Again, Mr. Buncher’s failure to 4 account for prior exposure to Ten’s is an argument about methodology and does not 5 render the survey and report inadmissible. 6 iv. “Generally Acceptable Survey Principles or Methods” 7 Defendant claims that the survey does not follow generally acceptable survey 8 principles or methods for various reasons. However, Mr. Buncher has explained his 9 methodology, and has also indicated he created the survey to conform “with the generally 10 accepted standards and procedures in the fielding of surveys set forth by the American 11 Marketing Association, Marketing Research Association, CASRO and ESOMAR” and 12 “[t]he survey was designed to meet the criteria for survey trustworthiness detailed in the 13 Federal Judicial Center’s Manual for Complex Litigation, Fourth.” (Doc. 48-2 at 7.) The 14 Court finds Plaintiffs have shown by a preponderance of the evidence that the report and 15 survey rely on acceptable methods. Defendant may challenge the basis for these methods 16 at trial. 17 v. Relevance 18 Defendant also contends that Mr. Buncher’s survey was not a relevant measure of 19 confusion because the questions did not require participants to name Plaintiffs; 20 participants were only permitted to provide a yes or no response when asked whether 21 they recognized Plaintiffs. Therefore, Defendant asserts, there can be no conclusion that 22 any participant identified Plaintiffs. 23 Defendant attempts to create a distinction between recognition and true 24 recognition. Assertedly true recognition requires the participants name each Plaintiff. 25 Defendant has not supported this assertion with case law, and the Court will not require 26 the higher level of recognition to find the results are relevant. As discussed previously, a 27 fact finder may determine that a Plaintiff is identifiable even if the Plaintiff has not been 28 named. 1 Moreover, the survey results are relevant to establishing participant confusion as 2 to whether Plaintiffs approved of, associated with, or promoted Ten’s. This confusion is 3 relevant to Plaintiffs’ false association claim. Plaintiffs have met their burden of 4 demonstrating Mr. Buncher’s testimony is relevant to a material issue in this case. 5 vi. Reliability 6 The cumulative errors listed above, Defendant asserts, make the survey and report 7 unreliable. “[M]ethodological deficiencies in a survey generally relate to the weight given 8 the survey’s conclusions rather than to its admissibility . . . [but] when the deficiencies 9 are so substantial that they render the survey’s conclusions untrustworthy, the court 10 should exclude the survey from evidence.” J & J Snack Foods, Corp. v. Earthgrains Co., 11 220 F. Supp. 2d 358, 369 (D.N.J. 2002). The Court finds that Mr. Buncher has provided 12 adequate reasoning for his methods, and Defendant’s objections do not prove that 13 substantial deficiencies in the survey render it unreliable. Rather, Defendant raises 14 arguments that may be properly used on cross examination to attempt to undermine 15 Buncher’s methodology and the credibility of his testimony. 16 vii. Other Courts 17 Finally, Defendant argues that Mr. Buncher’s survey and report should be 18 precluded because it was not permitted under similar circumstances in the Southern 19 District of New York. See Edmondson v. RCI Hosp. Holdings, Inc., No. 16-CV-2242 20 (VEC), 2020 WL 1503452 (S.D.N.Y. Mar. 30, 2020) (striking Mr. Buncher’s report for 21 methodological flaws); see also Toth v. 59 Murray Enterprises, Inc., No. 15-CV-8028, 22 2019 WL 95564, at *8 (S.D.N.Y. Jan. 3, 2019) (same). Defendant’s argument overlooks 23 a key difference in the standard for admissibility of survey evidence between the Second 24 and Ninth Circuits. See Gray, No. CV–18–02543–PHX–SRB, Doc. 121. While the 25 Second Circuit may exclude survey evidence upon a finding that the methodology is 26 lacking, in this circuit questionable methodology goes to the weight, not the 27 admissibility. Id. (quoting Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir. 1997)) 28 (“Challenges to survey methodology go to the weight given the survey, not its 1 admissibility.”). Moreover, while Mr. Buncher’s survey and report may have been 2 rejected in other courts, thus far it has been unilaterally permitted in the District of 3 Arizona in similar cases. See Gray, No. CV–18–02543–PHX–SRB, Doc. 121; Electra v. 4 Id. Bus. Holdings LLC, No. CV–18–01604–PHX–SRB, Doc. 80 (D. Ariz. Sept. 24, 5 2020); Geiger v. Creative Impact Inc., No. CV–18–01443–PHX–JAT, Doc. 96 (D. Ariz. 6 June 17, 2020). 7 The Court finds that Mr. Buncher’s survey and report are sufficiently relevant and 8 reliable and are admissible at trial. Defendant may raise any objections to Mr. Buncher’s 9 methodology through effective cross-examination. 10 III. Stephen Chamberlin 11 Plaintiffs retained Mr. Chamberlin to establish actual damages, that is, the fair 12 market value of the right to use Plaintiffs’ photographs in Defendant’s advertisements. 13 Mr. Chamberlin has estimated actual damages at an aggregate amount of $435,000. He 14 arrived at this amount using the hypothetical negotiation test. Mr. Chamberlin first 15 calculated each Plaintiff’s day rate—how much they would have been paid to produce the 16 photographs used by Ten’s under a hypothetical negotiated contract—and then multiplied 17 the day rate by the number of distinct uses of each photograph by Defendant. Mr. 18 Chamberlin’s estimated day rate varies by individual Plaintiff because he tailored his 19 assessment based on, among other factors, each Plaintiff’s past modeling contracts. 20 Defendant challenges Mr. Chamberlin’s conclusions on the basis that they are unreliable 21 and prejudicial. 22 a. Reliability 23 Defendant argues that Mr. Chamberlin’s conclusions are unreliable, challenging 24 (1) his method of calculating each Plaintiff’s day rate, and (2) his reliance on a “usage 25 multiplier.” 26 As to the first step of Mr. Chamberlin’s formula, Defendant posits that Mr. 27 Chamberlin’s choice to assess “each Plaintiff’s most lucrative contract” renders his 28 working day rate estimates unreliable. (Doc. 49 at 2.) Specifically, Defendant states that 1 he failed to explain his reasoning behind selecting those particular contracts while 2 disregarding other relevant contracts and he neglected to consider the scope of the 3 selected contracts. (Id.) 4 Furthermore, Defendant claims that Mr. Chamberlin “applie[d] a flawed 5 methodology to his inflated working rates.” (Id.) Specifically, it believes that, because 6 Mr. Chamberlin multiplied the day rate by each use of the photographs, he “improperly 7 assume[d] that separate licenses would have been agreed upon for each use of an image, 8 rather than the issuance of a single license for all uses of each image.” (Id. at 10 (quoting 9 Toth, 2019 WL 95564, at *8).) Finally, Defendant alleges that none of the disclosed 10 modeling contracts use the kind of “usage multiplier” for distinct usages like 11 advertisements, branding, and social media; rather, Defendant states, the contracts reflect 12 a flat rate per job. 13 Plaintiffs counterargue that Mr. Chamberlin’s day rate calculations are properly 14 based on his extensive experience in the modeling industry as well as a review of each 15 Plaintiff’s career. Additionally, they assert that Mr. Chamberlin need not have relied on 16 Plaintiffs’ least lucrative modeling contracts. Instead, recognizing “that models get paid 17 different rates based on the job and the product they are promoting,” he selected contracts 18 that reflect the day rate Plaintiffs would have received had they been hired to create 19 photographs for use in advertisements for Defendant’s strip club. (Doc. 54 at 4.) 20 Plaintiffs also assert that Mr. Chamberlin’s multiplication of the day rate by each 21 use of a photograph is accepted methodology in the modeling industry. They state that 22 “any modeling agent would consider [various different uses] when negotiating a 23 modeling contract.” (Id. at 6.) 24 Ultimately, a party’s disagreement with the sources upon which the expert bases 25 his or her conclusions goes to weight of the evidence and not admissibility. See Solis v. 26 Bridgestone Corp., No. CV-10-484-TUC-DCB, 2013 WL 12098802, at *3 (D. Ariz. Apr. 27 2, 2013) (“Questions related to the bases and sources of an expert’s opinion . . . should be 28 left for the consideration of the finder of fact a[s] these questions affect the weight to be 1 assigned to an expert’s opinion rather than its admissibility.”). The fact that Mr. 2 Chamberlin, in accordance with his specialized knowledge in the industry, chose to rely 3 primarily on contracts where Plaintiffs were paid more does not alone render his 4 testimony unreliable. Defendant may endeavor to discredit Mr. Chamberlin’s selective 5 assessment of Plaintiffs’ contracts on cross-examination, but his choice of sources does 6 not alone preclude his testimony. 7 b. Prejudice 8 Additionally, Defendant makes the cursory assertion that Mr. Chamberlin’s 9 testimony and report should be excluded under Federal Rule of Evidence 403. Rule 403 10 permits the court to “exclude relevant evidence if its probative value is substantially 11 outweighed by a danger of . . . unfair prejudice . . . .” Defendant states that Mr. 12 Chamberlin’s “report and opinions are so flawed that they are grossly prejudicial” and 13 this prejudice outweighs any probative value. (Doc. 49 at 2.) 14 The Court disagrees. The fact that Mr. Chamberlin’s estimated fair market value is 15 significantly higher than that of Defendant’s expert does not alone render his testimony 16 unfairly prejudicial. 17 c. Other Courts 18 Finally, Defendant contends that the Court should follow the Southern District of 19 New York in excluding Mr. Chamberlin’s testimony in similar matters. See Toth, 2019 20 WL 95564, at *12–13; Edmondson, 2020 WL 1503452, at *8–10. The courts in Toth and 21 Edmondson found Mr. Chamberlin’s conclusions unreliable because he did not explain 22 his reliance on some contracts and not others, did not account for the difference in scope 23 between those contracts and the type of hypothetical photo shoot at issue here, 24 improperly accounted for each use of the photographs rather than simply all uses of each 25 photograph, and calculated excessive damages. 26 However, as discussed above, these criticisms of Mr. Chamberlin’s choice of 27 sources and methodology do not bear on the threshold question of admissibility. Rather, 28 they will be properly considered by the finder of fact as to the weight of Mr. 1 Chamberlin’s expert opinion. Furthermore, as with Mr. Buncher’s testimony, thus far Mr. 2 Chamberlin’s testimony has been unilaterally permitted in the District of Arizona in 3 similar cases. See Gray, No. CV–18–02543–PHX–SRB, Doc. 121; Electra, No. CV–18– 4 01604–PHX–SRB, Doc. 80; Geiger, No. CV–18–01443–PHX–JAT, Doc. 96. Thus, 5 because Mr. Chamberlin’s conclusions are sufficiently reliable and not unfairly 6 prejudicial, they are admissible. 7 IV. Michael Einhorn 8 Defendant retained Dr. Einhorn to refute Mr. Chamberlin’s conclusions and 9 establish a competing valuation of actual damages. Like Mr. Chamberlin, Dr. Einhorn 10 estimated “the amount that would be determined in a hypothetical arms-length 11 negotiation.” (Doc. 43-1 at 8.) He began by calculating the day rate and dividing this rate 12 by the number of images likely to be produced in a one-day photo shoot. Dr. Einhorn 13 then subtracted a 20% modeling agent fee and multiplied the final amount by the number 14 of uses of the photograph. Ultimately, he concluded that the total actual damages incurred 15 by Plaintiffs ranges from $1,990 to $3,980. Plaintiffs challenge Dr. Einhorn’s opinions 16 arguing that he is unqualified to serve as an expert and that his conclusions are unreliable 17 and irrelevant. 18 a. Qualifications 19 As an initial matter, Plaintiffs assert that Dr. Einhorn does not qualify as an expert 20 for purposes of assessing the particular issues in this case because he “has never 21 negotiated a modeling contract, and knows nothing about the modeling industry.” (Doc. 22 43 at 2.) Dr. Einhorn’s methodology, Plaintiffs argue, is evidence of his lack of 23 qualifications. Specifically, Plaintiffs contend that Dr. Einhorn failed to conduct a 24 comparable analysis when he relied on fifteen undisclosed modeling contracts that 25 models other than Plaintiffs negotiated with lingerie companies. Furthermore, Plaintiffs 26 assert that Dr. Einhorn’s day rate estimation is not individualized: Dr. Einhorn merely 27 paraphrases information he found via an internet search; his analysis fails to account for 28 variation in the individual Plaintiff’s modeling careers; and he neglects to assess value 1 based on how Defendant used the individual photographs. 2 Defendant details Dr. Einhorn’s professional experience as a forensic economist 3 and as an expert witness in cases involving “intellectual property, media, entertainment, 4 technology, trademarks, publicity rights, and product design.” (Doc. 44 at 3.) It notes 5 that, although Dr. Einhorn has never negotiated a modeling contract, he “is an expert in 6 analyzing markets, prices, and valuations.” (Id. at 7.) 7 The Court finds that Dr. Einhorn qualifies as an expert. Although he lacks 8 experience in the modeling industry, his training and career as an economist, and as a 9 valuation expert, demonstrate that he has the requisite technical knowledge to justify his 10 role as an expert in the present case. The fact that Dr. Einhorn has never negotiated a 11 modeling contract is an attack on his credentials that goes to the weight of Dr. Einhorn’s 12 testimony, not to admissibility. Moreover, to the extent that Plaintiffs critique Dr. 13 Einhorn’s methodology as a means of challenging his qualifications, the Court addresses 14 methodology in the following sections. 15 b. Reliability 16 Next, Plaintiffs assert that Dr. Einhorn’s methodology renders his conclusions 17 unreliable. Specifically, they challenge his use of fifteen undisclosed modeling contracts 18 and Dr. Einhorn’s failure to analyze Plaintiffs’ own past contracts and earnings. Plaintiffs 19 claim the unrelated contracts between other models and lingerie companies are not 20 comparable to a contract between Plaintiffs and Ten’s. They also contend that Dr. 21 Einhorn failed to address key details regarding his use of the fifteen contracts including 22 “what services were performed under these contracts . . . what the undisclosed alleged 23 models were paid for their undisclosed services” and “why these undisclosed contracts 24 would be an appropriate starting off point . . . .” (Doc. 43 at 5–6.) Additionally, Plaintiffs 25 argue that Dr. Einhorn’s conclusions cannot be reliable because he used an internet 26 search of the phrase “working day rate, models” to support his day rate calculations. (Id. 27 at 6.) Finally, they object to Dr. Einhorn’s discussion of the purported final image price 28 and his conclusion that between six and twelve photographs are produced in a day. 1 Plaintiffs assert his analysis ignores the fact that day rates are negotiated before a photo 2 shoot and the number of images has no bearing on the pre-negotiated day rate. 3 Defendant explains that Dr. Einhorn was unable to draw a “straight line” between 4 the information in Plaintiffs’ disclosed contracts and the facts of this case. (Doc. 44 at 4.) 5 He, therefore, assessed fifteen modeling contracts for lingerie companies that he opined 6 were comparable. After reviewing these contracts, Dr. Einhorn calculated an average day 7 rate of between $2,000 and $2,500. The internet search, Defendant asserts, was market 8 research to corroborate Dr. Einhorn’s estimations, during which he found that a 50% 9 premium applied in similar risqué photo shoots. Finally, Defendant contends that Dr. 10 Einhorn disclosed the lingerie companies involved in the fifteen contracts but did not 11 reveal the names of the models for confidentiality reasons. 12 The Court finds that Dr. Einhorn’s opinions are sufficiently reliable. As noted 13 previously, issues with the sources of an expert’s testimony do not decide whether the 14 testimony is admissible. Rather, these issues should be considered by the fact finder in 15 assessing the weight of the expert’s testimony. Finally, that Dr. Einhorn used an internet 16 search to lend additional support to his calculations does not alone render his conclusions 17 unreliable. 18 c. Relevance 19 Additionally, Plaintiffs argue that Dr. Einhorn’s opinions are not relevant because 20 they will not help the finder of fact assess the evidence. Specifically, Plaintiffs assert that 21 Dr. Einhorn’s opinion is no different than that of a layperson because Dr. Einhorn relied 22 on an internet search to assist him in his analysis. Furthermore, Plaintiffs challenge the 23 relevance of the unverified websites that Dr. Einhorn reviewed. 24 Defendant clarifies that Dr. Einhorn’s internet search constituted specialized 25 market research that cannot be performed by a layperson and that he used this research to 26 corroborate the conclusions he drew from the fifteen contracts he assessed. In addition, 27 Defendant asserts that Dr. Einhorn verified the websites he reviewed. 28 The Court finds that Dr. Einhorn’s conclusions are relevant. As discussed above, 1 the fact that he conducted internet research in addition to reviewing modeling contracts is 2 an issue of the expert’s sources that must be weighed by the fact finder. Moreover, Dr. 3 Einhorn’s conclusions go to a material aspect of Defendant’s case—that is, the valuation 4 of actual damages—and, like Mr. Chamberlin’s conclusions, Dr. Einhorn’s have a 5 tendency to make Defendant’s determination of damages more or less probable than it 6 would be without his analysis. 7 d. Other Courts 8 Finally, because Dr. Einhorn utilized internet search results in his analysis, 9 Plaintiffs urge this Court to exclude his testimony based on D’Pergo Custom Guitars, 10 Inc. v. Sweetwater Sound, Inc., No. 17-cv-747-LM, 2020 WL 60351, at *5 (D.N.H. Jan. 11 6, 2020). In D’Pergo, the district court excluded Dr. Einhorn’s expert testimony as to 12 trademark infringement damages because it found that his conclusions lacked 13 independent analysis and would not be helpful to the finder of fact. It specifically noted 14 that Dr. Einhorn did no more than “merely paraphrase[] [customer] affidavits and then 15 state[] that [he] is unable to opine on D’Pergo’s lost profits.” Id. 16 The Court disagrees that a similar issue exists here. Dr. Einhorn relied on more 17 than the results of his internet research to estimate the day rate. He reviewed Mr. 18 Chamberlin’s report as well as fifteen other modeling contracts that he believed were 19 comparable to the case and “model testimony” regarding how many images can be shot 20 in one day. (Doc. 43-1 at 74.) Therefore, the Court finds that Dr. Einhorn’s report 21 contains independent analysis and will be helpful to the jury. 22 Moreover, like the other experts, despite being precluded in certain cases, in this 23 district under similar circumstances Dr. Einhorn’s testimony has been permitted. See 24 Gray, No. CV–18–02543–PHX–SRB, Doc. 121; Electra, No. CV–18–01604–PHX–SRB, 25 Doc. 80; Geiger, No. CV–18–01443–PHX–JAT, Doc. 96. 26 V. Conclusion 27 The Court finds that the parties have demonstrated by a preponderance of the 28 evidence that Mr. Buncher, Mr. Chamberlin, and Dr. Einhorn’s testimony are relevant and reliable. Each expert shall be permitted to testify to their expert opinions at trial. 2 Accordingly, IT IS ORDERED: 3 1) Defendant’s Motion to Strike Report and Testimony of Martin Buncher is 4 DENIED. (Doc. 48.) 5 2) Defendant’s Motion to Strike Report and Testimony of Stephen Chamberlin is 6 DENIED. (Doc. 49.) 7 3) Plaintiff's Motion to Strike Report and Testimony of Michael Einhorn is 8 DENIED. (Doc. 43.) 9 Dated this 7th day of October, 2020. 10 11 12 _ p — ST □□□ 13 Honorable Raner C. Collins 14 senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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